Alternatives to Family Law Litigation
Litigation is generally the last resort for resolving a legal dispute. In family law, there are a number of alternative methods of coming to an agreement that should be considered prior to making an application to the court. This article outlines those methods.
Negotiation involves a discussion of the issues in dispute, in an attempt to come to an agreement. Such discussions can take place in different forms. For instance, separating couples may meet and speak directly to each other. Alternatively, negotiations could be facilitated through lawyers; through written correspondence, at a round table conference, collaborative meetings or at mediation. Notwithstanding which mode negotiations take place, parties to the dispute should obtain independent legal advice as to their rights and entitlements prior to entering negotiations. Only then can a party to the dispute be empowered with knowledge and to ensure that all matters that should be considered in any final agreement is negotiated.
Mediation is a form of family dispute resolution that aims for parties to resolve their dispute with the assistance of a neutral third party. A qualified mediator can help the parties discuss the issues and explore alternatives to reach an agreement. Whilst mediations can be informal, a good mediator will balance out any power imbalances between the parties to ensure each party can equally participate in the negotiations.
Collaborative law may be described as a series of meetings between the parties to the dispute, along with their solicitors and potentially other professionals (for example accountants, financial advisors, therapists) aiming to resolve the dispute. Professionals not of the legal field may attend the collaborative meetings to provide information and advice, with a view that any resolution is family-focused. The negotiations are confidential and transparent. Neither party can threaten or commence court proceedings without the collaborative law agreement being terminated and the parties instructing new solicitors to represent them.
Arbitration is a process whereby parties to a financial dispute only submit their evidence to an arbitrator to consider and make a determination. The arbitrator may make a decision after reading the evidence put before them. Alternatively, a “mock” courtroom may be set up and the parties or their legal representatives also make oral submissions in respect of the case, to also be considered.
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Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?